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What's Not in the Constitution?

What's not in the Constitution?Have you ever heard, in conversation or in the media, say "That's unconstitutional!" or "That's my constitutional right!" and wondered if they were right? You'd find it surprising how often they'd be incorrect. On the other hand, they might be correct. The best defense against your having personal misconceptions is to read and study the Constitution.

Most of us presume many things about the Constitution that are, in fact, incorrect.

The following will detail some things that are popularly believed to be in the Constitution, but actually are not.

Hopefully, this information will enhance your understanding of the Constitution and its contents.

Congressional Districts

Every state in the union has at least one Congressional District - Alaska, South Dakota, North Dakota, Montana, Wyoming, Delaware, and Vermont have one (1) - whereas all other states have two (2) or more - California has the most at fifty-three (53). Each district elects one Representative to the House of Representatives. The number of districts in each state is determined by the decennial census, as mandated by the Constitution. But districts are not mentioned in the Constitution. The United States Code acknowledges districting, but leaves the "how's" to the states.  The act of gerrymandering - to manipulate to gain an unfair advantage when drawing district boundaries - is unconstitutional [see Davis v Bandemer, 478 U.S. 109 (1986), though, the intent of gerrymandering has been difficult to prove.

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Executive Orders

Executive Orders (EOs) have two main functions: to modify how an executive branch department or agency does its job (rule change) or to modify existing law, if such authority has been granted, to the President, by Congress. Executive orders are not mentioned by the Constitution, but they have been around a long, long time. George Washington issued several Presidential Proclamations, which are similar to EOs (Proclamations are still issued today). EOs and Proclamations are not law, but they have the effect of statutes. A typical modern Proclamation might declare a day to be in someone's honor. Historically, they have had broader effect, such as the Emancipation Proclamation. A typical EO might instruct the government to do no business with a country which is on the State Department's Terrorist nation list. Executive orders are subject to judicial review, and can be declared unconstitutional - unfortunately this is rarely accomplished.  As of August, 2013 President Obama had signed 161 Executive Orders.

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Executive Privilege

Executive privilege is the asserted right to withhold information from the legislative and judicial branches of the government by the President or by one of the executive departments on behalf of the President. There is an argument to be made that the right does not exist at all - a debate that has existed since our first President, George Washington, asserted the privilege in his first term.

Most often, executive privilege is asserted for alleged national security reasons. President Washington, however, asserted the privilege when the House requested details of Jay's Treaty — his rationale was that the House has no role in treaty-making and hence no right to request the documents. In more contemporary times, Bill Clinton refused to simply comply with an order to appear before a grand jury, and instead negotiated terms under which he would appear. Richard Nixon's is perhaps the most widely known claim of executive privilege, and while the Supreme Court, in U.S. v Nixon, 418 U.S. 683 (1974), recognized that there exists a need for some secrecy in the executive branch, but that the secrecy cannot be absolute. The Court ordered Nixon to turn over tapes and documents which had been subpoenaed by the Special Prosecutor. More recently, the minutes and records of Vice President Dick Cheney's energy task force were requested and denied based on executive privilege. This case made its way to the Supreme Court, where the Court deflected the case and sent it back to a lower court for further adjudication.

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God

Although the Founders often referred to the Deity in their personal writings, the word God does not appear within the body of the Constitution. However, a reference to the Deity does appear, at the end of the Constitution, following Article VII:

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our names. (Emphasis added)

This was the common way of expressing a date at the time the Constitution was written and should not be interpreted as having any more significance than that. Interestingly the Constitution, as originally written, does obliquely affirm an interest in protecting religious freedom. Article VI, Clause 3, states that:

...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

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Life, Liberty, and the Pursuit of Happiness

This phrase is known by heart by almost every American: "Life, Liberty, and the Pursuit of Happiness." Seven simple words which put into law our inherited right to live, be free, and be happy...but it actually does not. 

The phrase is nowhere to be found in the Constitution. It actually comes from the Declaration of Independence which—while being a highly significant historical document— is not a legal document within the framework of American constitutional law. The 5th Amendment does protect our rights to "life, liberty and property" but not happiness.

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